Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion No.545/2018
in L.C. Suit No.867/2011
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Notice of Motion No.545 of 2018
(CNR NO. MH CC010020992018)
In
L.C. SUIT No.867 OF 2011
AlAziz Palace Coop. Housing Society Ltd. ….Plaintiff
V/s.
Mirza Mukhtar Ahmed Baig & Ors. ....Defendants
Appearance:
Mr. Ashok Sarogi, Advocate for the plaintiff.
Mr. M.A. Adenwala, Advocate for the defendant No.1.
Ms. Chandramore, Advocate for the defendant No.2.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
(C.R.NO.12)
DATE : 10 th December, 2019.
ORDER
1. By this notice of motion, plaintiff has prayed for condonation
of delay of 575 days in presenting notice of motion and setting aside the
order dated 02.03.2013 and for restoration of L.C. Suit No.867/2011.
2. In support of notice of motion, plaintiff has filed affidavit
and averred that the L.C. Suit No.867/2011 came to be dismissed on
02.03.2013. Earlier Advocate of plaintiff presented M.A. No.130/2014
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2 Notice of Motion No.545/2018
in L.C. Suit No.867/2011
for restoration of the suit. Plaintiff has relied on the averments made in
M.A. No.130/2014. In addition, it is submitted that the reply tendered
by defendant No.1 indicates that the same has been filed only to proceed
with the matter on merit. During pendency of M.A. No.130/2014, as per
the rules of City Civil Court, this notice of motion is tendered, since M.A.
No.130/2014 is not found maintainable. The delay of 575 days occurred
for restoration of suit.
3. It is further averred by plaintiff that due to mistake on the
part of earlier Advocate, delay has been taken place and the plaintiff was
not aware about the procedure of tendering notice of motion for
restoration of the suit, which was dismissed on 02.03.2013. Eventually,
it is prayed that notice of motion may kindly be made absolute.
4. Defendant No.1 has tendered affidavit in reply and it is
averred that notice of motion and earlier M.A. No.130/2014 is barred by
law of limitation. The plaintiff was not diligent in prosecuting M.A.
No.130/2014 which is reflected from the roznama of the proceeding. The
suit was filed in order to harass the defendant No.1 who is Senior
Citizen. Prior to filing the suit, defendant No.1 had filed L.C. Suit
No.1132/2010 for removal of encroachment made on the public street
adjacent to the building of defendant No.1 and also for removal of
unauthorized encroachment made on the premises of defendant No.1 by
embedding iron rods in the walls of the bakery owned by defendant
No.1. According to defendant No.1, in order to counter blast the said
suit i.e. L.C. Suit No.867/2011 has been filed by the plaintiff.
5. It is further averred that the Suit No.1132/2010 was decreed
and the appeal filed thereon by present plaintiff and Civil Application
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3 Notice of Motion No.545/2018
in L.C. Suit No.867/2011
No.268/2012 for condonation of delay reflects that in 2012, plaintiff had
discontinued services of Advocate and appointed new Advocate. The
submission of M.A. No.130/2014 are contradictory to the statement in
Application No.268/2012. The plaintiff being Cooperative Society is
required to maintain correspondence with the concerned Advocate.
However, no record to that effect is relied by plaintiff and this indicates
false statement made by plaintiff.
6. It is further averred that the plaintiff has not made out any
case for the condonation of delay and therefore he is not entitled for the
relief of restoration of suit.
7. Heard learned Advocates. Following points arise for
consideration. Findings against each of them alongwith reasons are
stated as below.
SR. NOS. POINTS FINDINGS
1. Whether the plaintiff have made
out any case for condonation of
delay for restoration of L.C.Suit
No.867/2011 ?
In Affirmative.
2. What Order ? As per final order
REASONS
As to point No.1and 2 jointly
8. Learned Advocate for plaintiff vehemently submitted that
earlier M.A.No.130/2014 was filed on behalf of plaintiff in November
2014. The said M.A.No. 130/2014 has been withdrawn and notice of
motion is filed thereafter. The suit has been dismissed on 02.03.2013.
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in L.C. Suit No.867/2011
Learned Advocate for plaintiff has further relied on the averments made
in M.A.No. 130/2014. Learned Advocate for plaintiff further
vehemently submitted that the earlier Advocate engaged on behalf of
plaintiff was not providing proper updates and the plaintiff being layman
was not aware about the status of the captioned matter. On 22.02.2013,
when the plaintiff reached in the Court and attended the matter it was
already adjourned on 02.03.2013. Due to heavy traffic on 02.03.2013,
plaintiff could not reach in the Court and matter was dismissed for
default. In this respect, learned Advocate for defendant No.1 strenuously
submitted that the said averments of plaintiff reflects that he was aware
about the dismissal order on 02.03.2013. Still he has not taken any steps
for restoration of the suit immediately.
9. Learned Advocate for defendant No.1 further submitted that
exact date of delay is not mentioned by plaintiff and in spite of having
knowledge of the dismissal order of 02.03.2013, in action of plaintiff for
immediate restoration of suit shows that he is not interested to proceed
with the suit and is interested in harassing defendant No.1. For lack of
bonafide on the part of plaintiff, it is prayed that the notice of motion
may kindly be dismissed with cost.
10. It is not in dispute that the suit was dismissed for default on
02.03.2013. M.A.No. 130/2014 for restoration of the suit was filed on
27.11.2014. On 09.02.2018, the plaintiff has tendered the present notice
of motion. On 04.10.2018, at the request of Advocate of plaintiff, to
avoid technicalities both the M.A.No.130/2014 and present notice of
motion were taken up together for hearing by my learned predecessor.
As per order dated 15.06.2019 of my learned predecessor M.A.No.
130/2014 is disposed off being not maintainable as per the City Civil
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in L.C. Suit No.867/2011
Court Rules for seeking relief of restoration of the suit. In the present
case, it is the averment of plaintiff that he was not duly informed by
earlier Advocate about fixed date of the suit. The averment of plaintiff
further shows that he came to know about dismissal of order in the suit
on 02.03.2013. However, he further made averment that he
immediately informed to his Advocate on the same day about the
dismissal of order and prayer for restoration of the suit on the same day
was rejected for want of necessary steps. The averments of plaintiff
further shows that as per the advise of earlier Advocate it was required to
tender notice of motion for restoration of suit but it was not filed by the
concerned Advocate. Therefore, plaintiff approached to Court in first
week of May 2014 to check the status of notice of motion and he was
shocked and surprised to discover that notice of motion for restoration
was not filed by concerned Advocate. According to plaintiff till August
2014, the Advocate did not informed him the dates of the hearing for
restoration of the suit. On personal enquiry by plaintiff, he was not
replied properly for not filing any Notice of Motion/Miscellaneous
Application for restoration of suit. These reasons made out by plaintiff
reflects that there is no intentional delay caused on his behalf for taking
steps for restoration of the suit. The causes made out on behalf of
plaintiff are “Sufficient” which needs favourable consideration for
condonation of delay. However, it can not be ignored that the delay
caused on behalf of plaintiff though not intentional has resulted in
inconvenience and hardship to defendant No.1. Therefore, heavy cost is
required to be imposed on plaintiff in order to compensate sufficiently to
defendant No.1.
11. Learned Advocate for defendant No.1 has cited the
Judgment in the matter of “Binod Bihari Singh V/s. Union of India in
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in L.C. Suit No.867/2011
AIR 1993 SC 1245”
It has been observed by Hon'ble Court that :
The appellant, in this case, having taken a false stand on the
question of receipt of the signed copy of the award to get rid of the
bar of limitation, should not be encouraged to get any premium on
the falsehood on his part by rejecting the plea of limitation raised
by the Respondent.
In that case the question for consideration arise out of an
application made by appellant Binod Bihari Singh for making an award
in Arbitration Proceeding Rule of Court after directing the arbitrator to
file award. Therefore, the facts being not identical with present case, the
observations are not applicable.
12. Learned Advocate for defendant No.1 has further cited
Judgment in “Laxman N. Divekar V/s. State of Maharashtra in AIR
1998 Bom 176”.
Where in question for consideration is whether the Court
committed error or jurisdiction in condoning the delay of more than 750
days. It has been observed by Hon'ble Bombay High Court that
In the very nature of the governmental functioning the decision is
not taken by an individual and the matters are processed at various
levels but if in such processing, there is any delay, it is for the
Government to explain such delay sufficiently setting out the
specific facts where the matter was held up which resulted in delay.
However, on general, vague and ambiguous averments that the
appellant is the State and because of the rush of the administrative
work and other preoccupations the appeal could not be filed within
time, by no stretch could be accepted as sufficient cause. The court
ought to bear in mind that a very valuable right is secured to the
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in L.C. Suit No.867/2011
successful litigant on expiration of limitation and this right should
not be casually disturbed and that applicant is not entitled to
condonation of delay as a matter of right. The applicant, before it
can seek condonation of delay and invoke discretion of the court
must show that there was no negligence, inaction or want of bona
fides on its part.
In that case the award was passed on 02.03.1991 and it was
challenged by the defendant/state on 18.12.993. The reason for
codonation of delay was mentioned that for obtaining certified copy of
Judgment and Decree dated 02.03.1991 was made on 22.10.1993,
certified copies were received on 28.10.1993 and the appeal was filed on
18.12.1993. In that circumstances, the observation as above were made
by Hon'ble High Court. In the present case, plaintiff has made out
sufficient cause for condonation of delay for restoration of Suit
No.867/2011. Therefore, with due respect to the observation in the
cited Judgment, I am of the opinion that it is not applicable to the
present set of facts.
13. In view of forgoing discussion, though the specific date of
delay is not mentioned by plaintiff, it is the fact that earlier, plaintiff
preferred M.A. No.130/2014 for restoration of suit. The reason
mentioned in the M.A. No.130/2014 are justifiable for condonation of
delay of 575 days for restoration of suit. Thereafter, as per the rules of
City Civil Court, present notice of motion is taken out by plaintiff and
though it is disposed for being not maintainable, it can not be ignored
that the plaintiff has taken steps for restoration of suit and made out
justifiable reasons for condonation of delay. Resultantly, for the delay
caused on behalf of plaintiff, I am of the opinion that cost of Rs.10,000/
to defendant No.1 will meet the end of justice. Accordingly, point No.1
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8 Notice of Motion No.545/2018
in L.C. Suit No.867/2011
is answered in affirmative and for the answer of point No.2, I pass
following order.
ORDER
1) Notice of Motion No.545/2018 is made absolute in terms of prayer
clause (a) and (b) subject to cost of Rs.10,000/ (Rs. Ten
Thousand Only) to defendant No.1.
2) Payment of cost is condition precedent and failure to make
compliance of the same within one month from the date of order,
will automatically result in dismissal of notice of motion.
3) After payment of cost L.C. Suit No.867/2011 be restored to its
original stage.
4) Notice of Motion No.545/2018 is disposed off accordingly.
(Jayshri R. Pulate)
Judge
City Civil Court,
Gr. Bombay
Date : 10/12/2019
Dictated on : 10.12.2019
Transcribed on : 12.12.2019
Signed on : 16.12.2019
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in L.C. Suit No.867/2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.12.2019 12.15 p.m. Ms. Ujwala J. Bhagat.
Name of the Judge H.H.J. Jayshri R. Pulate.
(Court Room No.12)
Date of pronouncement of Order 10.12.2019
Order signed by P.O. on 16.12.2019
Order uploaded on 17.12.2019
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in L.C. Suit No.867/2011
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